Hohfeld vs. the Legal Realists

Abstract

2018 marked the centenary of Wesley Hohfeld’s untimely passing. Curiously, in recent years quite a few prominent legal historians and philosophers have identified him as a Legal Realist. This article argues that Hohfeld was no such thing, that his work need not be understood in such lights, and that he in fact made a smaller contribution to jurisprudence than is generally believed. He has nothing to do with theories of official decision-making that identify, amongst other things, “extra-legal” factors as the real drivers of judicial decision-making, and nor must his schema of jural relations advance a “Realist” political agenda. Distinguishing Hohfeld from the Realists will help to correct some misunderstandings about his work and point to its utility in many more contexts than a Realist reading of it allows.

Keywords: Hohfeld, Legal Realism, Rights, Legal Rights, Philosophy of Rights, Legal Philosophy, Jurisprudence